FILED
NOT FOR PUBLICATION
DEC 07 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANYLO A. MOSKALYUK, AKA No. 15-72543
Danylo Moskalyuk, AKA Danylo
Andreyavich Moskalyuk, AKA Danylo Agency No. A057-189-518
Andriyovych Moskalyuk,
Petitioner, MEMORANDUM*
v.
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 5, 2018**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: O’SCANNLAIN and IKUTA, Circuit Judges, and STEEH,*** District
Judge.
Danylo Moskalyuk petitions for review of an order of the Board of
Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ)
denying his claims for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.
Moskalyuk did not establish that any feared future harm would befall him on
account of his membership in his proposed social group, disabled persons with
spinal cord injuries in Ukraine, because those feared harms apply to many other
groups, and there is no evidence that the proposed social group is intentionally
targeted in Ukraine. See Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 (9th
Cir. 2013). Therefore, even assuming, as the BIA did, that the proposed social
group is cognizable, the BIA’s decision that Moskalyuk failed to establish a nexus
between any feared persecution and his membership in his proposed social group
was supported by substantial evidence. See Parussimova v. Mukasey, 555 F.3d
734, 739–41 (9th Cir. 2009). Nor did Moskalyuk establish an objectively
reasonable fear of future persecution, because he failed to establish that he had any
individualized risk of being singled out for persecution on the basis of his
***
The Honorable George Caram Steeh III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
2
membership in the proposed social group, see Halim v. Holder, 590 F.3d 971, 979
(9th Cir. 2009), or that there exists a pattern or practice of persecution of similarly
situated persons in Ukraine based on their membership in the proposed social
group, see Wakkary v. Holder, 558 F.3d 1049, 1060–62 (9th Cir. 2009). Because
Moskalyuk failed to establish a well-founded fear of future persecution on account
of his membership in the proposed social group, his claim for asylum must fail.
See 8 C.F.R. § 1208.13(b)(2)(i)(A). And, because the “clear probability standard
for withholding of removal is more stringent than the well-founded fear standard
governing asylum,” Al-Harbi v. INS, 242 F.3d 882, 888–89 (9th Cir. 2001)
(internal citations and quotation marks omitted), Moskalyuk’s withholding of
removal claim necessarily fails.
Substantial evidence also supports the BIA’s denial of Moskalyuk’s CAT
claim because there is no evidence that the Ukrainian government, or individuals
acting with government acquiescence, will more likely than not harm Moskalyuk
with the specific intent to inflict severe pain or suffering. See Villegas v. Mukasey,
523 F.3d 984, 989 (9th Cir. 2008).
PETITION DENIED.
3